MM, etc on copyright

[Dave Farber <dave () farber net>]

Delivered-To: dfarber+ () ux13 sp cs cmu edu
Date: Wed, 25 Feb 2004 16:58:23 -0500
From: L Jean Camp <jean_camp () harvard edu>
Subject: MM, etc on copyright
To: dave () farber net

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=357461

Dave,

I think Wendy is leader in consideration of costs of copyright. I enjoyed 
the discourse you published earlier on your list and wanted to point you to 
this.

-Jean

Authors, Publishers, and Public Goods: Trading Gold for Dross

WENDY J. GORDON
Boston University School of Law
 Boston Univ. School of Law Working Paper No. 02-23
Loyola of Los Angeles Law Review, Vol. 36, p. 159, Fall 2002

          Abstract:
The article seeks to clarify what is at stake - and what is not - in the 
litigation challenging the constitutional validity of the Sonny Bono 
Copyright Term Extension Act (CTEA). First, the article distinguishes 
between the CTEA's retrospective term extension of copyright term and the 
retrospective extensions enacted by prior Congresses. The article suggests 
that the CTEA provisions are constitutionally questionable in ways that 
earlier retrospective extensions may not have been. To hold the CTEA 
unconstitutional would not make all other term extensions vulnerable.

Second, the article shows how non-creative physical activities such as 
digitization and film preservation have public goods characteristics that 
did not attach to equivalent physical activities (such as typesetting) in 
the eighteenth century. The article argues that, nevertheless, no expansion 
of the Copyright Clause is triggered by this new susceptibility to free riding.

The Constitution does not treat all public goods problems similarly. For 
example, the Constitution singles out only some public goods for federal 
concern (e.g., national defense), while leaving others to state and local 
discretion. Implicit in the Supreme Court's existing jurisprudence is a 
finding that the Copyright Clause of the Constitution treats the free-rider 
problems faced by non-creative public goods (such as digitization and 
restoration of old media) differently from the free-rider problems faced by 
creative public goods (such as works of authorship). The article argues 
that the Copyright Clause is exclusively or primarily concerned with 
providing remedies for the latter. The article thus suggests that the 
CTEA's retrospective extension embodies a constitutionally impermissible 
tradeoff because it uses federal power to gain - at most - some 
encouragement for non-creative activity, while discouraging the creative 
activity with whose encouragement Congress was originally entrusted.

In addition, the article reviews and expands on the usual economic 
arguments for limiting the duration of intellectual property. In 
particular, the article uses the Nirvana Fallacy to show the dynamics that 
can hide behind the usual unitary notion of "deadweight loss," and recasts 
another phrase from the language of economics - the "increased costs of 
creation" - in a way that makes clear the aesthetic and psychological costs 
imposed by a long copyright

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